Before
me[1]
in this diversity action by Fenner Dunlop Americas, LLC
(Fenner Dunlop) against DRI Incorporated, d/b/a Diversified
Resources Incorporated (DRI)[2] is Fenner Dunlop's motion for
summary judgment under Rule 56 of the Federal Rules of Civil
Procedure.[3] DRI has not responded to Fenner
Dunlop's motion, and both parties have waived oral
argument on the motion.[4] For the reasons that follow, Fenner
Dunlop's motion will be granted.

Facts

The
undisputed facts, with citations to the supporting record,
are set out by Fenner Dunlop in its brief in support of its
motion as follows:

On 16
occasions from May 27, 2015 to July 23, 2015, at DRI's
request, Fenner Dunlop Americas, Inc. sold conveyor belt and
splice materials ("Belt") to DRI in the
transactions identified and for the prices set forth in the
Statement of Account attached as App'x 1 to the
Declaration of Raj Gopal
("Transactions").[5] DRI has admitted that the
Statements of Account (which were also attached to the First
Amended Complaint as Exhibit A) accurately describe the
Transactions, including purchase order numbers, quantity of
Belt purchased, and agreed prices for the Belt.[6]

Each of
the 16 Transactions included a written invoice that described
DRI's order and recited the invoice date, shipment date,
quantity, price and payment terms, among other things, and
incorporated Fenner's Standard Terms and Conditions of
Sale. At no time did DRI provide notice to Fenner that it
objected to any of the Standard Terms and Conditions of
Sale.[7] Copies of the invoices for each of the 16
Transactions ("Invoices") are attached as App'x
2 to the Gopal Declaration.[8] DRI has admitted that the
invoices (which were also attached to the First Amended
Complaint as Exhibit B) accurately describe the Transactions,
including purchase order numbers, quantity of Belt purchased,
and agreed prices for the Belt.[9] The total purchase price for the
Belt was $1, 125, 568.09.[10]

Unless otherwise agreed to in writing by Fenner Dunlop
Americas, Inc., this invoice is subject to the Standard Terms
and Conditions of Sale of Fenner Dunlop Americas, Inc. posted
at www.fennerdunlopamericas.com/termsofsale (the
"Terms and Conditions") and is hereby incorporated
by reference into and made a part of this invoice. Purchaser
acknowledges it has read and agrees to be bound by such Terms
and Conditions. Purchaser also acknowledges that Fenner
Dunlop Americas, Inc. may, from time to time and at its
discretion, modify the Terms and Conditions and Purchaser
agrees to be bound by such Terms and Conditions as
modified.[12]

At the
time of the Transactions, DRI's President, Jeffery Hurt,
read the language on the statements of account and the
invoices that incorporated the terms and
conditions.[13] H u r t testified that he never used the
internet link provided or requested a copy of the terms and
conditions.[14]

A copy
of the Standard Terms and Conditions of Sale in force at the
time of the Transactions is attached as App'x 3 to the
Gopal Declaration. At all relevant times, the Standard Terms
and Conditions were available on the website of Fenner Dunlop
Americas, Inc. and by request of any buyer.[15] Section 3 of
the Standard Terms and Conditions provides that past due
accounts will bear interest at the rate of 3% per month.
Section 10 provides that the transactions will be governed by
the laws of the State of Ohio. Section 11 provides that:

In the event of any action or proceeding relating to a
Transaction subject to this Agreement where Fenner is
determined to be the prevailing party with regard to some or
all claims, Purchaser [DRI] agrees to pay all of Fenner's
attorney's fees or litigation costs up through and
including any appeal.

DRI
admits that Fenner delivered the Belt as ordered, that DRI
accepted the Belt, that DRI did not reject the Belt, and that
DRI has failed and refused to pay Fenner for the
Belt.[16]DRI also admits that it never notified of
Fenner of any defect with the Belt.[17] Indeed, the only excuse
offered by DRI for why it has not paid Fenner is that it did
not have the money.[18]

On
February 1, 2016, Fenner Dunlop Americas, Inc. converted to
Fenner Dunlop Americas, LLC, the plaintiff entity in this
case. Fenner Dunlop Americas, LLC is the successor by
conversion to all contracts entered into by Fenner Dunlop
Americas, Inc. On this point, Fenner incorporates its prior
Opposition to Plaintiff's Motion for Judgment on the
Pleadings[19] and Opposition to Plaintiff's Motion
to Dismiss, [20] and related exhibits and declaration,
[21]
which establish that the plaintiff entity is the successor to
Fenner Dunlop Americas, Inc.

A.
Standards of Review

1.
Summary judgment standard

The
court should grant summary judgment if satisfied “that
there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of
law.”[22] The moving party bears the burden of
showing the absence of any such “genuine issue”:

[A] party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of ‘the
pleadings, depositions answers to interrogatories, and
admissions on file, together with affidavits, if any, '
which it believes demonstrates the absence of a genuine issue
of material fact.[23]

A fact
is “material” only if its resolution will affect
the outcome of the lawsuit.[24] Determination of whether a
factual issue is “genuine” requires consideration
of the applicable evidentiary standards.[25] The court
will view the summary judgment motion “in the light
most favorable to the party opposing the
motion.”[26]

The
court should not grant summary judgment if a party who bears
the burden of proof at trial does not establish an essential
element of his case.[27] Accordingly, “[t]he mere existence
of a scintilla of evidence in support of the plaintiff's
position will be insufficient; there must be evidence on
which the jury could reasonably find for the
plaintiff.”[28] Moreover, if the evidence presented is
“merely colorable” and not “significantly
probative, ” the court may decide the legal issue and
grant summary judgment.[29]

In most
civil cases involving summary judgment, the court must decide
“whether reasonable jurors could find by a
preponderance of the evidence that the [non-moving party] is
entitled to a verdict.”[30] But if the non-moving party
faces a heightened burden of proof, such as clear and
convincing evidence, it must show that it can produce
evidence which, if believed, will meet the higher
standard.[31]

Once
the moving party has satisfied its burden of proof, the
burden then shifts to the nonmover.[32] The nonmoving party may
not simply rely on its pleadings, but must “produce
evidence that results in a conflict of material fact to be
solved by a jury.”[33] The text of Fed.R.Civ.P. 56(e)
states:

When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the
mere allegations or denials of his pleading, but his
response, by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a
genuine issue for trial.

“In
other words, the movant can challenge the opposing party to
‘put up or shut up' on a critical
issue.”[34]

Though
parties must produce evidence in support of and in opposition
to a motion for summary judgment, not all types of evidence
are permissible. The Sixth Circuit has concurred that
“‘it is well settled that only admissible
evidence may be considered by the trial court in ruling on a
motion for summary judgment.'”[35] Rule 56(e)
also has certain, more specific requirements:

[it] requires that affidavits used for summary judgment
purposes be made on the basis of personal knowledge, set
forth admissible evidence, and show that the affiant is
competent to testify. Rule 56(e) further requires the party
to attach sworn or certified copies to all documents referred
to in the affidavit. Furthermore, hearsay evidence cannot be
considered on a motion for summary judgment.[36]

But the
district court may consider evidence not meeting this
standard unless the opposing party affirmatively raises the
issue of the defect. The burden is on the opposing party to
object to the improper evidence; failure to object
constitutes a waiver.

If a party fails to object before the district court to the
affidavits or evidentiary materials submitted by the other
party in support of its position on summary judgment, any
objections to the district court's consideration of such
materials are deemed to have been waived, and [the Sixth
Circuit] will review such objections only to avoid a gross
miscarriage of justice.[37]

As a
general matter, the judge considering a motion for summary
judgment need examine “[o]nly disputes over facts that
might affect the outcome of the suit under governing
law.”[38] The court will not consider non-material
facts, nor will it weigh material evidence to determine the
truth of the matter.[39] The judge's sole function is to
determine whether there is a genuine factual issue for trial;
this does not exist unless “there is sufficient
evidence favoring the nonmoving party for a jury to return a
verdict for that party.”[40]

In sum,
proper summary judgment analysis entails:

the threshold inquiry of determining whether there is the
need for a trial - whether, in other words, there are any
genuine factual issues that properly can be resolved only by
a finder of fact because they may ...

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